Israel T. Klapper, Frank Bognet, Falvello, Ustynoski, Guiliana & Bernstein, Thomas J. Carlyon, Hazelton, for appellant.
James P. Harris, Harris, Johnston & Maguire, Wilkes-Barre, David A. Ody, Asst. Atty. Gen., Harrisburg, for appellees.
Jerome H. Gerber, James L. Cowden, Handler, Gerber & Weinstock, Harrisburg, for Pennsylvania AFL-CIO, amicus curiae.
Van Arkel, Kaiser, Gressman & Rosenberg, Henry Kaiser, Ronald Rosenberg, Washington, D. C., Meranze, Katz, Spear & Wilderman, Bernard N. Katz, Philadelphia, for Bakery and Confectionery Workers International Union, for amicus curiae.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Manderino, J., concurs in the result.
On May 9, 1969, Charles R. Williams filed a claim petition under the Pennsylvania Occupational Disease Act,*fn1 alleging he was totally disabled as the result of employment by Spaulding Bakeries, Inc. [Spaulding], in a hazardous occupation. Williams had been employed by Spaulding from 1934 to April 21, 1969, interrupted only by two years of military service. During this time Williams served in many capacities, several of which involved exposure to flour dust. In his petition, Williams alleged that, as a result of his exposure to and inhalation of the flour dust, he had become totally disabled from "Baker's Asthma"*fn2 and, therefore, qualified for compensation under the provisions of Section 108(n) of the Act.*fn3
After a hearing, the Workmen's Compensation Referee determined that Williams is totally disabled due to pulmonary fibrosis and pulmonary emphysema and, on March 1, 1971, he entered an award in favor of Williams. Spaulding then appealed to the Workmen's Compensation Board which, without taking further testimony, on September
, 1972, affirmed the award by the Referee. The Board held that Williams is totally disabled due to "pulmonary fibrosis and pulmonary emphysema induced by flour dust". Spaulding then filed an appeal in the Court of Common Pleas of Luzerne County and this appeal was dismissed. An appeal was then taken to the Commonwealth Court which recognized the Board had acted without the benefit of our decision in Utter v. Asten-Hill Mfg. Co., 453 Pa. 401, 309 A.2d 583 (1973), which set forth the law as to when a disease may properly be considered an occupational disease within the provisions of Section 108(n). The Commonwealth Court concluded Williams had failed to satisfy the test set forth in Utter, reversed the Board's order and dismissed Williams' petition. We then granted allocatur.
Section 108(n) is a "catch all" provision in the Act. See DeMascola v. Lancaster, 200 Pa. Super. 365, 189 A.2d 333 (1963). Whereas the prior lettered subsections of Section 108 designate specific occupational diseases, Section 108(n) mentions no disease but, instead, provides that the term occupational disease shall include "other occupational diseases (1) to which the claimant is exposed by reason of his employment, and (2) which are peculiar to the industry or occupation, and (3) which are not common to the general population."*fn4
Initially, case law interpreting this subsection decreed that diseases which were common to the general population could not be considered as compensable occupational diseases under the provisions of Section 108(n), even if the disease were caused by the claimant's employment. See, e. g., Perez v. Blumenthal Brothers Chocolate Company, 428 Pa. 225, ...